Case 5:20-cv-01464-DSF-SHK Document 1 Filed 07/23/20 Page 1 of 18 Page ID #:1
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`QUARLES & BRADY LLP
`ATTORNEYS AT LAW
`
`
`
`
`QUARLES & BRADY LLP
`Michael W. Carwin, Bar No. 309696
`Email: Michael.Carwin@quarles.com
`300 N. LaSalle Street, Suite 4000
`Chicago, Illinois 60654
`Telephone: (312) 715-5000
`Facsimile: (312) 715-5155
`
`Counsel for Plaintiffs
`VITAL PHARMACEUTICALS, INC and JHO
`INTELLECTUAL PROPERTY HOLDINGS,
`LLC
`
`
`IN THE UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`EASTERN DIVISION
`Case No. 5:20-cv-1464
`VITAL PHARMACEUTICALS, INC.,
`and JHO INTELLECTUAL
`COMPLAINT FOR
`PROPERTY HOLDINGS, LLC,
`DECLARATORY RELIEF AND
`DAMAGES
`Plaintiffs,
`
`DEMAND FOR JURY TRIAL
`
`v.
`ORANGE BANG, INC., and
`MONSTER ENERGY COMPANY,
`Defendants.
`
`
`
`
`
`Plaintiffs Vital Pharmaceuticals, Inc. d/b/a VPX Sports (“VPX”) and JHO
`Intellectual Property Holdings, LLC (“JHO”) state as follows for their Complaint
`against Defendants Orange Bang, Inc. (“OBI”) and Monster Energy Company
`(“Monster”):
`
`Jurisdiction and Venue
`1.
`This action includes claims for declaratory judgment pursuant to the
`Federal Declaratory Judgment Act, codified at 28 U.S.C. § 2201, and arises under
`the Lanham Act, codified at 15 U.S.C. § 1051 et seq. This action also includes
`claims for damages.
`
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`COMPLAINT FOR DECLARATORY
`RELIEF AND DAMAGES
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`

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`Case 5:20-cv-01464-DSF-SHK Document 1 Filed 07/23/20 Page 2 of 18 Page ID #:2
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`2.
`This Court has subject matter jurisdiction over this matter pursuant to
`28 U.S.C. § 1331, and under the supplemental jurisdiction of this Court, as
`embodied in 28 U.S.C. § 1367(a). There are claims arising under the Constitution,
`laws, or treaties of the United States in that VPX requests a declaration of non-
`infringement arising under the Lanham Act, codified at 15 U.S.C. § 1051 et seq.,
`over which there is original federal question jurisdiction.
`3.
`An immediate and justiciable controversy exists between the parties
`based, in part, on OBI’s and Monster’s allegations stated in their joint Demand for
`Arbitration (defined below) against VPX, which allegations constitute a threat to
`file a lawsuit against VPX for allegedly infringing OBI’s trademarks. Specifically,
`OBI’s and Monster’s Demand for Arbitration includes allegations of trademark
`infringement, including that (1) “VPX has infringed OBI’s BANG marks and
`created a false designation of origin, by using in commerce, without OBI’s
`permission, the BANG mark in connection with the advertisement, offering for
`sale, sale, and/or distribution of VPX’s Bang beverages that are not creatine-based
`and that are not marketed and sold exclusively through vitamin and nutritional
`supplement stores, gyms and health clubs, or to the nutritional and dietary
`supplement sections only of convenience or other stores as described in the
`contract”; (2) “VPX’s actions are likely to cause confusion and mistake, or to
`deceive as to the affiliation, connection, or association of OBI with VPX, and/or as
`to the origin, sponsorship, or approval of VPX’s products or commercial activities,
`in violation of 15 U.S.C. § 1125(a)”; and (3) “VPX, by its actions, has damaged
`Orange Bang.” Moreover, OBI’s and Monster’s allegations that VPX’s
`trademarks—which are federally registered and owned by JHO—infringe OBI’s
`trademarks, necessarily create an immediate and justiciable controversy between,
`on the one hand, OBI and Monster, and, on the other hand, VPX and JHO.
`4.
`Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because
`both Monster and OBI maintain their corporate headquarters in this district.
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`COMPLAINT FOR DECLARATORY
`RELIEF AND DAMAGES
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`Case 5:20-cv-01464-DSF-SHK Document 1 Filed 07/23/20 Page 3 of 18 Page ID #:3
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`Parties
`5.
`VPX is a Florida corporation with its principal place of business in
`Weston, Florida.
`6.
`JHO is a Florida limited liability company with its principal place of
`business in Weston, Florida.
`7.
`OBI is a California corporation with its principal place of business in
`Sylmar, California.
`8. Monster is a Delaware corporation with its principal place of business
`in Corona, California.
`
`Nature of Action
`9.
`VPX, established in 1993 and incorporated in 1996, manufactures and
`has historically sold fitness-focused nutritional supplement products and sugarless
`energy drink products. VPX’s contemporary energy drink product line features
`highly successful sugarless energy drink products named “BANG.” OBI, on the
`other hand, manufactures concentrated whipped fruit beverages that (if and to the
`extent still in commerce at all) are or previously were primarily offered for sale and
`sold by OBI in concentrate form to be ultimately purchased by consumers from
`fountain drink machines. VPX’s and OBI’s respective products are not similar or
`targeted to the same customers, and they are not competitors.
`10. Nearly a decade ago, on August 11, 2010, VPX and OBI entered into a
`confidential Settlement Agreement (the “Settlement Agreement”) that resolved
`certain disputes regarding a long ago-discontinued VPX bodybuilding supplement
`product then-called “Bang!” and trademark registrations pre-dating the Settlement
`Agreement. The Settlement Agreement includes a confidentiality clause and an
`arbitration provision.
`11. Until recently, VPX and OBI have had no conflict with each other.
`Indeed, prior to 2019, OBI had never taken issue with VPX’s current BANG energy
`drink products, despite the fact that VPX had introduced them into commerce in
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`RELIEF AND DAMAGES
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`Case 5:20-cv-01464-DSF-SHK Document 1 Filed 07/23/20 Page 4 of 18 Page ID #:4
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`2012. Those seven years of peaceful coexistence are not unsurprising because
`VPX’s sugar-free energy drink products are nothing like OBI’s sugar-loaded
`whipped fruit juice products, and are wholly unrelated to the products addressed in
`the Settlement Agreement.
`12. VPX and Monster, on the other hand, are presently fierce competitors
`within the energy drink product space. Although Monster boasts that it is among the
`global market leaders within that product space, it has consistently been losing
`market share to VPX since VPX entered the marketplace. As a result, Monster—a
`notorious corporate bully and vexatious litigant—has resorted to anti-competitive
`measures in an effort to quash VPX’s success.
`13. Although VPX does not yet know the details (which will be the subject
`of discovery), Monster induced OBI to purportedly assign its rights in the
`Settlement Agreement and to join OBI in an arbitration proceeding against VPX
`(which Monster is very likely funding), wherein Monster, as purported assignee,
`now seeks to weaponize the Settlement Agreement to collaterally assault VPX’s
`right to compete within the energy drink space and OBI (likely at the behest of
`Monster) purports to assert trademark infringement claims against VPX.
`14. VPX brings this action to obtain judicial declarations that the claims
`brought by OBI and Monster are not subject to arbitration, and to obtain damages
`from Monster and OBI for their unfair and unlawful conspiracy to harm the public
`by curtailing fair competition.
`
`Background Facts
`
`A. OBI and VPX
`15. According to its website (orangebang.com), OBI was incorporated in
`1971 and “has become one the largest major company’s [sic] to manufacture
`premium concentrates for hispanic & whipped fruit juice beverages, packaged in
`Bag-in-Box & Bottles.”
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`COMPLAINT FOR DECLARATORY
`RELIEF AND DAMAGES
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`Case 5:20-cv-01464-DSF-SHK Document 1 Filed 07/23/20 Page 5 of 18 Page ID #:5
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`16. The only products for which OBI uses the word “Bang!” are its
`whipped fruit juice drinks, called Orange Bang!, Pina Colada Bang!, and
`Strawberry Bang!. OBI’s other products are marketed under its Ole! brand.
`17. OBI does not produce energy drink products (sugarless, carbonated,
`non-carbonated or otherwise), nor does it produce any nutritional supplement
`products. Quite to the contrary, OBI’s whipped fruit juice beverages are loaded
`with sugar.
`18. Conversely, VPX does not produce whipped fruit juice beverages
`(sugar-loaded, in concentrate form, or otherwise).
`19. VPX was established as a business in 1993 and incorporated in 1996.
`At that time, it focused primarily on producing nutritional supplements such as
`protein shakes and bodybuilding supplements.
`20.
`In 2009, OBI filed a lawsuit against VPX in this Court alleging, in
`summary, that VPX’s use of the word “Bang!” on a bodybuilding product (which
`VPX has not produced for years) infringed upon three trademark registrations held
`by OBI, being U.S. TM Reg. No. 1,223,619 (the “619 Registration”), TM Reg. No.
`1,220,228 (the “228 Registration”), and TM Reg. No. 1,224,457 (the “457
`Registration”).
`21. On or about August 11, 2010, VPX and OBI resolved the lawsuit by
`entering into the Settlement Agreement.
`22.
`In general, the Settlement Agreement set forth certain permissible
`channels (for both VPX and OBI) of their then-existing products. The Settlement
`Agreement did not and does not, however, impose any restrictions or prohibitions
`on VPX with respect to development or branding of new products.
`23. The Settlement Agreement contains a confidentiality provision and,
`therefore, is not attached to this Complaint but could be filed at the appropriate time
`under seal.
`
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`COMPLAINT FOR DECLARATORY
`RELIEF AND DAMAGES
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`Case 5:20-cv-01464-DSF-SHK Document 1 Filed 07/23/20 Page 6 of 18 Page ID #:6
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`24. The Settlement Agreement also contains the following arbitration
`clause: “Any Claim or controversy arising out of or relating to the Action, this
`Agreement or any breach thereof shall be submitted to arbitration in Los Angeles
`County, California, before an experienced arbitrator licensed to practice law in
`California and selected in accordance with the procedures of the American
`Arbitration Association, as the exclusive remedy for such claim or
`controversy. . . .”
`25. VPX introduced its first “BANG” energy drink product, a sugarless
`carbonated energy drink, in 2012. That highly successful product was not, and is
`not, a re-formulation of any previously existing VPX product. To the contrary, it
`was a completely new product when introduced in the energy drink marketplace.
`VPX later introduced its non-carbonated “BANG” keto-coffee product in 2019.
`That product, too, is a brand new VPX product, not a re-formulation of any VPX
`product that existed at the time of the Settlement Agreement.
`26. OBI and VPX are not (and never have been) competitors. VPX has
`never produced whipped fruit juice beverages, and, conversely, OBI has never
`produced energy drinks or fitness-focused products.
`B. Monster’s Scheme to Hijack the 2010 VPX-OBI Settlement Agreement
`to Harm Consumers and Stifle Competition in the Energy Drink Market
`27. Unlike VPX and OBI, VPX and Monster are fierce competitors.
`Although Monster touts that it is a market leader for energy drinks, consumers have
`learned over time that VPX offers superior products and, as such, VPX has
`continually taken market share from Monster.
`28.
`In response to this legitimate competitive threat, Monster has resorted
`to duplicitous, bullying tactics aimed at damaging VPX and its founder and Chief
`Executive Officer, Jack Owoc, and otherwise thwarting VPX’s growth.
`29. Monster’s tactics include vexatious, scorched-earth lawsuits seeking,
`again, to “snuff-out” fair competition.
`
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`COMPLAINT FOR DECLARATORY
`RELIEF AND DAMAGES
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`Case 5:20-cv-01464-DSF-SHK Document 1 Filed 07/23/20 Page 7 of 18 Page ID #:7
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`30. Unfortunately, Monster’s tactics against VPX appear to be part and
`parcel of Monster’s modus operandi—to attack any and all competition through
`lawsuits.
`31. The title of a 2016 article captures well Monster’s litigious ways:
`“Monster Energy: The World’s Biggest Bully When It Comes to Small
`Businesses.”1 The article opines: “[u]unfortunately, like a lot of powerful entities,
`Monster is also a merciless bully—one that bankrupts and squeezes out small
`businesses at every turn.”
`32. The 2016 “World’s Biggest Bully” article notes that “over the last four
`years, Monster has sued at least 50 small businesses . . . and they don’t appear to be
`stopping anytime soon.”
`33. Tellingly, a 2018 article highlights Monster’s “impressive losing
`streak” in trademark disputes.2
`34. The “impressive losing streak” alone is illustrative of the manner in
`which Monster so liberally resorts to the judicial process to chill legitimate business
`competition and stamp out any product that undermines its diminishing share of the
`energy drink market.
`35.
`In the present action, for the initial seven years after VPX introduced
`its first BANG energy drink product and started rising in popularity (i.e., from 2012
`until 2019), OBI never claimed VPX had violated the Settlement Agreement—a
`tacit acknowledgement that VPX’s newly-introduced products were neither
`governed by the Settlement Agreement nor a violation of it.
`
`
`1
`See Evan Allgood, Monster Energy: The World’s Biggest Bully When It
`Comes to Small Businesses, Energy Drinks Lawsuit (March 23, 2016),
`https://www.energydrinkslawsuit.com/monster-energy-worlds-biggest-bully/ (last
`visited July 23, 2020).
` 2
`See Timothy Geigner, Monster Energy Loses Again, This Time to The NBA,
`Tech Dirt (September 25, 2018),
`https://www.techdirt.com/articles/20180921/13345540691/monster-energy-loses-
`again-this-time-to-nba.shtml (last visited July 23, 2020).
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`RELIEF AND DAMAGES
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`Case 5:20-cv-01464-DSF-SHK Document 1 Filed 07/23/20 Page 8 of 18 Page ID #:8
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`36. Unexpectedly, on or about March 25, 2019 (nearly nine years after the
`Settlement Agreement was signed and seven years after VPX’s first BANG energy
`drink product was introduced), OBI sent correspondence claiming that VPX’s non-
`carbonated “Bang” keto-coffee product (introduced in 2019) constituted breach of
`the Settlement Agreement. A true and accurate copy of that correspondence is
`attached hereto as Exhibit A. Even that correspondence does not take issue with
`VPX’s other BANG energy drink products which, by that point, had been in the
`market for seven years.
`37. After receiving OBI’s above-referenced correspondence and being
`unable to reach a resolution with OBI, VPX initiated litigation in the Superior Court
`of California, County of Los Angeles, on or about August 9, 2019, seeking
`declaratory relief that OBI’s “claims concerning VPX’s ready-to-drink coffee
`beverages do not arise out of nor relate to the Prior Controversy or the Settlement
`Agreement,” “do not breach the Settlement Agreement,” and “are not subject to
`arbitration pursuant to the Settlement Agreement.”
`38. After being served with VPX’s lawsuit, OBI requested the matter
`proceed in arbitration instead. Ultimately, VPX agreed to “dismiss without
`prejudice, the complaint and proceed to binding arbitration, in exchange for a
`waiver of costs.” OBI accepted that proposal.
`39. While VPX will require discovery to learn the underlying details of the
`transaction, Monster somehow learned of the 2010 OBI/VPX Settlement
`Agreement and convinced OBI to purportedly “assign” all or some part of it to
`Monster. It is VPX’s position that the Settlement Agreement is not assignable.
`40. On or about June 16, 2020, OBI and Monster jointly filed a Demand
`for Arbitration against VPX (the “Demand for Arbitration”). The confidential
`Settlement Agreement is attached to the Demand for Arbitration as an exhibit;
`further, the Demand for Arbitration itself is marked “Confidential.” Accordingly,
`
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`COMPLAINT FOR DECLARATORY
`RELIEF AND DAMAGES
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`Case 5:20-cv-01464-DSF-SHK Document 1 Filed 07/23/20 Page 9 of 18 Page ID #:9
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`those documents are not attached to this Complaint as exhibits but could be
`tendered to the Court at the appropriate time, under seal.
`41. The Demand for Arbitration filed by OBI and Monster is far different
`from the issues raised by OBI in its March 25, 2019 correspondence. For one,
`Monster was added as a party. And while OBI’s March 25, 2019 correspondence
`only raised issues regarding VPX’s non-carbonated “Bang” keto-coffee product, the
`Demand for Arbitration appears to raise issues regarding VPX’s entire BANG
`energy drink product line. OBI also added trademark claims, and damages claims.
`42. OBI, manifestly at the behest of Monster, effectively pulled an
`underhanded “bait-and-switch,” convincing VPX to dismiss its litigation in favor of
`arbitrating a single relatively narrow issue (i.e., whether “Bang” keto-coffee was a
`violation of the Settlement Agreement). Then, instead of filing a Demand for
`Arbitration on that issue, OBI’s Demand for Arbitration added a party, added
`numerous substantive issues, and added numerous claims.
`43. For numerous reasons, the Demand for Arbitration filed by OBI and
`Monster is not limited to claims “arising out of or relating to” the Settlement
`Agreement. For example: (1) Monster is not a party to the Settlement Agreement
`and VPX has never agreed to arbitrate with Monster, but Monster was included as a
`claimant in the Demand for Arbitration; (2) the Demand for Arbitration includes
`claims relating to OBI’s trademarks that were not even in existence at the time of
`the Settlement Agreement; (3) the Demand for Arbitration seeks trademark-related
`relief (both as to OBI’s trademarks and VPX’s trademarks) that is beyond the scope
`of the Settlement Agreement; (4) the Demand for Arbitration includes independent
`tort claims; and (5) the Demand for Arbitration purports to seek injunctive relief
`(although, so far, OBI and Monster have taken no action to pursue such relief).
`44. Upon information and belief, Monster induced OBI to weaponize the
`Settlement Agreement against VPX’s commercial success.
`
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`RELIEF AND DAMAGES
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`Case 5:20-cv-01464-DSF-SHK Document 1 Filed 07/23/20 Page 10 of 18 Page ID #:10
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`45. Upon information and belief, Monster also induced and continues to
`induce OBI to pursue trademark infringement claims against VPX that OBI would
`not have otherwise pursued (and did not pursue for nearly a decade), in an unfair
`and illegal effort to stifle VPX’s commercial success and, accordingly, to harm
`consumers by stifling fair competition.
`46. Monster is believed to be paying all or a portion of OBI’s attorney
`
`fees.
`
`47. Monster is taking these actions as an inducement and encouragement
`for OBI to pursue the arbitration.
`Count I—Declaratory Judgment (Arbitrability of Claims)
`against OBI and Monster
`48. VPX incorporates by reference all of its prior allegations, as if fully set
`forth herein.
`49. The Settlement Agreement’s arbitration clause applies to claims
`“arising out of or relating to” the Settlement Agreement or OBI’s 2009 lawsuit
`against VPX.
`50. The Settlement Agreement’s arbitration clause does not, however, give
`the arbitrator authority to determine arbitrability of any specific claim. The
`Settlement Agreement’s arbitration clause also does not give the arbitrator authority
`to grant injunctive relief.
`51. OBI’s and Monster’s Demand for Arbitration consists of the following
`claims:
`
`a.
`
`b.
`
`c.
`
`Count I: Breach of Contract—Settlement Agreement Sections
`7(b), 7(c), and 18(b) (by OBI and Monster against VPX);
`Count II: False Designation of Origin—15 U.S.C. § 1125(a) (by
`OBI against VPX);
`Count III: Trademark Infringement—15 U.S.C. § 1114 (by OBI
`against VPX);
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`COMPLAINT FOR DECLARATORY
`RELIEF AND DAMAGES
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`Case 5:20-cv-01464-DSF-SHK Document 1 Filed 07/23/20 Page 11 of 18 Page ID #:11
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`d.
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`e.
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`b.
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`c.
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`d.
`
`Count IV: Unfair Competition Under California Business &
`Professions Code §§ 17200 et seq. (by OBI against VPX); and
`Count V: California Common Law Unfair Competition (by OBI
`against VPX).
`52. As they have been asserted in the Demand for Arbitration, none of
`OBI’s and Monster’s claims are subject to the Settlement Agreement’s arbitration
`clause. The reasons the asserted claims are not arbitrable include:
`a. Monster is included as a Claimant at least as to Count I, but
`VPX has not agreed to arbitrate with Monster;
`Counts II–V are causes of action, including torts, that are being
`asserted independently of the Settlement Agreement;
`The Demand for Arbitration references and seeks relief
`involving trademarks that post-date the Settlement Agreement
`and are unrelated to the Settlement Agreement;
`The Demand for Arbitration references and seeks relief relating
`to newly developed VPX products that did not exist at the time
`of the Settlement Agreement and were not contemplated by the
`Settlement Agreement or its arbitration clause;
`The Demand for Arbitration purports to seek injunctive relief,
`which is not authorized by the Settlement Agreement’s
`arbitration clause; and
`The trademarks being challenged by OBI and Monster are
`owned by JHO and licensed to VPX. JHO is, therefore, an
`indispensable party, but has not agreed to and is not bound by
`the arbitration clause in the Settlement Agreement.
`
`e.
`
`f.
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`COMPLAINT FOR DECLARATORY
`RELIEF AND DAMAGES
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`Case 5:20-cv-01464-DSF-SHK Document 1 Filed 07/23/20 Page 12 of 18 Page ID #:12
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`ATTORNEYS AT LAW
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`Count II—Declaratory Judgment of
`Right to Use Federally Registered Trademarks
`53. VPX incorporates by reference all of its prior allegations, as if fully set
`forth herein.
`54. VPX is a manufacturer and distributor of nutritional supplements and
`energy drinks and has been in continuous business for over 25 years. Since opening
`in 1993, and incorporating in 1996, VPX has created numerous world-renowned
`energy drink brands and proprietary products, including the BANG energy drink
`product line, as shown below.
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`55. BANG energy drinks have been sold throughout the world and, in
`2019 alone, BANG energy drinks generated nearly $700 million in sales. BANG
`energy drinks are currently the third-largest selling energy drink in the United
`States.
`56. The BANG family of marks is protected by three federal trademark
`registrations:
`a.
`U.S. Trademark Registration No. 3,545,129 for the BANG®
`word mark, which is incontestable and reflects a date of first use in commerce of
`September 26, 2008. A true and correct copy of this registration is attached as
`Exhibit B.
`
`b.
`U.S. Trademark Registration Nos. 4,985,030 and 4,990,091 for
`the B logo shown below, which reflect dates of first use in commerce of February
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`COMPLAINT FOR DECLARATORY
`RELIEF AND DAMAGES
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`Case 5:20-cv-01464-DSF-SHK Document 1 Filed 07/23/20 Page 13 of 18 Page ID #:13
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`2016 and January 2015, respectively. True and correct copies of these registrations
`are attached as composite Exhibit C.
`
`
`57. During the prosecution of these trademarks, the United States Patent
`and Trademark Office did not rely on OBI’s trademarks as a basis for rejecting
`registration.
`58.
`JHO is the registered owner of these federal trademark registrations.
`JHO has licensed to VPX the right to use the BANG family of trademarks.
`Ownership of these federally registered trademarks is prima facie evidence of their
`validity and of VPX and JHO’s exclusive right to their use.
`59. On or about June 16, 2020, OBI and Monster jointly filed a Demand
`for Arbitration against VPX. As stated in Paragraph 3 above, the Demand for
`Arbitration alleges that VPX’s use of its trademarks infringes OBI’s trademarks.
`OBI claims that VPX’s conduct constitutes trademark infringement and, thus, that
`VPX and JHO are not entitled to use these BANG trademarks. VPX and JHO’s
`BANG family of federally registered trademarks are not the subject of the
`Settlement Agreement.
`60. Consequently, there is an actual and substantial controversy between
`VPX and JHO and OBI regarding VPX and JHO’s rights to use their federally
`registered trademarks and resolve the demonstrated uncertainty generated by the
`controversy. To resolve the legal and factual issues raised by VPX and JHO and to
`afford relief from the controversy, which OBI’s assertions have precipitated, VPX
`and JHO are entitled to a declaratory judgment confirming their respective rights
`pursuant to 28 U.S.C. § 2201.
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`COMPLAINT FOR DECLARATORY
`RELIEF AND DAMAGES
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`

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`Case 5:20-cv-01464-DSF-SHK Document 1 Filed 07/23/20 Page 14 of 18 Page ID #:14
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`QUARLES & BRADY LLP
`ATTORNEYS AT LAW
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`Count III—Declaratory Judgment of Non-Infringement
`and No Unfair Competition
`61. VPX incorporates by reference all of its prior allegations, as if fully set
`forth herein.
`62. Likelihood of confusion is an essential element of claims brought
`pursuant to 15 U.S.C. §§ 1114(a) and 1125(a), which OBI must establish in order
`to succeed on a claim brought pursuant to those sections or under analogous state
`law.
`
`63. OBI claims that VPX’s use of its federally registered trademarks as
`alleged in this action is likely to cause confusion with respect to the 619
`Registration, the 228 Registration, and the 457 Registration.
`64. VPX and JHO’s trademarks have strong recognition in the
`marketplace. Based on their federal trademark registrations, VPX and JHO are
`entitled to the presumption that the BANG marks are valid and that they have a
`right to use the marks. In addition, more than $700 million worth of Bang Energy
`drinks were sold in the last year alone. Bang Energy drinks are considered the third-
`largest selling energy drink in the United States. In addition, Bang Energy’s
`Instagram account—which displays the “B” trademark as its profile picture—has
`over 1.6 million followers, representing commercial strength. Thus, VPX and
`JHO’s trademarks are strong and there is no likelihood of confusion.
`65.
`In addition, OBI’s trademarks are wholly dissimilar to the BANG
`marks. VPX and JHO’s trademarks use different stylized font and do not include
`the word “Orange” or an exclamation mark, among other distinguishable features.
`Moreover, VPX and JHO’s logo and packaging do not have the same overall look
`and feel as OBI’s logo and packaging.
`66. OBI and VPX’s products are also dissimilar. Historically, OBI has
`manufactured concentrated whipped fruit beverages that were primarily offered for
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`COMPLAINT FOR DECLARATORY
`RELIEF AND DAMAGES
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`Case 5:20-cv-01464-DSF-SHK Document 1 Filed 07/23/20 Page 15 of 18 Page ID #:15
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`sale and sold by OBI in concentrate form to be ultimately purchased by consumers
`from fountain drink machines.
`67. VPX sells canned sugarless carbonated energy drinks and other
`fitness-focused products.
`68. VPX and OBI also offer their goods to dissimilar customers and
`through dissimilar channels of trade. VPX manufactures nutritional supplements
`and energy drinks, including BANG Energy drinks.
`69. OBI (to the extent its products even remain in commerce)
`manufactures whipped fruit beverages that are sold or were sold in concentrate
`form, include high levels of sugar, and are not marketed to health-conscious
`consumers.
`70. VPX’s and OBI’s respective products are not similar, and they are not
`competitors.
`71. VPX denies that its use of its trademarks is likely to cause confusion
`with respect to OBI’s trademarks. VPX’s use of its trademarks is not in violation of
`any rights OBI may have in the 619 Registration, the 228 Registration, and the 457
`Registration under the Lanham Act or California trademark law.
`72. Consequently, there is an actual and substantial controversy between
`VPX and JHO and OBI regarding VPX and JHO’s rights to use their federally
`registered trademarks and to resolve the demonstrated uncertainty generated by the
`controversy. To resolve the legal and factual issues raised by VPX and JHO and to
`afford relief from the controversy, which OBI’s assertions have precipitated, VPX
`and JHO are entitled to a declaratory judgment confirming their respective rights
`pursuant to 28 U.S.C. § 2201.
`Count IV—Unfair Business Practices
`(Cal. Bus. and Prof. Code § 17200 et seq.) against Monster
`73. VPX incorporates by reference all of its prior allegations, as if fully set
`forth herein.
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`COMPLAINT FOR DECLARATORY
`RELIEF AND DAMAGES
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`

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`Case 5:20-cv-01464-DSF-SHK Document 1 Filed 07/23/20 Page 16 of 18 Page ID #:16
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`ATTORNEYS AT LAW
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`74. Monster’s above-described actions constitute unfair business practices
`under California Business & Professions Code § 17200, et seq. Without limitation,
`the following actions constitute unfair business practices by Monster: (1) claiming
`and attempting to assert contractual rights it does not actually possess; (2) inducing
`and incentivizing OBI to pursue trademark-related claims that OBI would not have
`otherwise pursued (and, in fact, did not pursue for nearly a decade); and (3)
`inducing and incentivizing OBI to pursue trademark-related claims that OBI knows
`(and has tacitly acknowledged via its years of inaction) are without merit.
`75. All of the above-referenced actions were undertaken by Monster in an
`effort to unfairly and unlawfully harm consumers and stifle fair competition in the
`energy drink market.
`76. As a direct result of Monster’s actions and unfair business practices,
`VPX has been damaged, and Monster has been unjustly enriched.
`Count V—Unreasonable Restraint of Trade
`(Cal. Bus. and Prof. Code § 16726 et seq.)
`(against Monster and OBI)
`77. VPX incorporates by reference all of its prior allegations, as if fully set
`forth herein.
`78. Monster and OBI have agreed, either directly or implicitly, to engage
`in a joint effort to curtail VPX’s ability to fairly compete in the energy drink
`market.
`79. The purpose and effect of Monster’s and OBI’s conduct was and has
`been to restrain competition in the industry in which Monster and VPX operate.
`80. Monster has a direct incentive to engage in this conduct—namely, to
`im